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Tuesday, July 30, 2013

Chris Halikes, posted a comment on yesterday's blog posting about expanding the DNA database to the entire population. He expressed the following concern:

The mathematics of coincidental matches, particularly with respect to
the size of the database, is a thorny subject. However, the odds of a
coincidental match seem to rise (the so-called birthday problem). Given
the strength of the tunnel vision that sets in when DNA is involved
(the Lukis Anderson/Raveesh Kumra case is a recent example), I would
think long and hard about the wisdom of having an all-inclusive
database.

The prospect of more false accusations definitely deserves thought.

In evaluating this risk, the birthday problem is not on point. In the birthday problem, the number of comparisons grows exponentially with the number of people of in the room because there is no single birthday of interest. For a group of size N, there are approximately N2/2 comparisons. For a fixed birthday, however, there are only N comparisons.

In case work, no one examines all possible pairs of profiles. Like a fixed birthday, a single crime-scene profile is compared to the profiles in the database. Because the number of comparisons is N, the risk grows only linearly with the size of the database. The exponential growth in the Birthday Paradox does not occur.

CODIS is expanding the number of loci in the profile, so the chance that two people (other than monozygotic twins) share the same profile will be even smaller than it is now. When the crime-scene sample yields a good profile (say, 16 or more loci), I cannot see why increasing the database size to that of the entire population would produce many matches to people whose DNA was not at the crime-scene.

The record of an innocent monozygotic twin would pop up in every database trawl for a crime-scene DNA profile that actually belongs to the guilty twin. Strictly speaking, these are not these "coincidental," because there is a deterministic explanation. For such matches -- and for truly coincidental ones -- the population-wide database flags the problem for the police. They get matches to more than one individual! They will know that they must investigate further. Thus, universality alleviates the problem of a "coincidental match" by making every such match apparent.

The problem in the Kumra case, according to prosecutors, was secondary transfer to fingernails that (I assume) did not have DNA from the actual killers. Likewise, if the police or anyone else plants DNA from a target in an incriminating place where the perpetrator's DNA might be found -- and the perpetrator's DNA is not there -- the database trawl will identify the target instead of the perpetrator.

If a crime-scene sample becomes contaminated with extraneous DNA from individuals who were not present at the crime-scene in an amount sufficient to yield a clear and complete profile, the result could be a false accusation and ensuing conviction for people living in the vicinity, being in the correct age range and physical capacity, and lacking a convincing alibi.

Another limitation of DNA databases is that, at best, they can only show that an individual was at a crime-scene at some point. If police and prosecutors unreflectively equate presence with guilt and a suspect has no persuasive explanation for his presence, injustice could follow. However, this is a problem today. Arguably, a universal database might diminish the problem: cases of innocent presence would arise more often, leading to greater sensitivity to this limitation.

Less worrisome are errors such as mislabeling or mistyping the samples in the database. If the profile recorded for me is not my profile but was present at the crime-scene, this mistake will become apparent when I am retested after the cold hit, as is standard procedure. The confirmatory test will exclude me.

A population-wide has other advantages than those I mentioned today and yesterday -- but it also has its share of disadvantages.

Monday, July 29, 2013

The August ABA Journal landed in my mailbox. Usually, I ask reporters to check with me on the wording before quoting. Alas, I neglected to do so some weeks ago, when Mark Walsh asked me about DNA databases in the aftermath of the Supreme Court's opinion in Maryland v. King. Mr. Walsh's article quotes me as follows: "Is the point of arrest the sensible place to draw the line? I can imagine a system in which you take a sample from everyone. Newborns already have a heel prick taken for certain genetic testing. At the same time you could take a DNA sample. Not that you expect a newborn to commit a crime, but 20 years later the sample is there in the database."

Oops! I said that? I meant to say this: "Is the point of arrest the sensible place to draw the line? I can
imagine a system in which you take a sample from everyone. Newborns
already have a heel prick taken for certain genetic testing. Along with these genetic tests, you could obtain a DNA profile. Not that you expect a newborn to
commit a crime, but 20 years later the profile is there in the database." The critical difference: "profile," not "sample."

Here is the way that Michael Smith, Ed Imwinkelried and I explained the idea (which was stimulated by remarks of Phil Reilly to the legal issues working group of the National Commission on the Future of DNA Evidence) in another ABA publication back in 2001:

Creating a national identification database all at once would be prohibitively expensive today, even if we had the laboratory capacity to do it. But DNA typing technology is advancing at a pace reminiscent of the exponential growth in computer microprocessing power that has made the “personal computer” a fixture on every desk. Soon it will be feasible to create a DNA identification record for everyone, at least prospectively. For example, it would be easy to extract identification profiles as an adjunct to the existing public health programs that for many years have screened DNA samples from almost all newborns, to identify infants with treatable genetic diseases. The identification profiles could be transmitted to a single, secure, national database. The genetic locations (“loci” is the technical term) used for those identification profiles would be strictly limited to sequences that have no implications for health or other significant physical or mental traits. Furthermore, access to the database would be limited to law enforcement personnel investigating specific crimes in which DNA trace evidence already has been found. Law enforcement agencies would not need—and should not be permitted—to handle, much less retain, the samples.

... Not only would a comprehensive database be valuable to the criminal justice system, but it also would be useful in identifying remains after natural disasters, mass accidents, and terrorist attacks. Such a database is, we believe, socially advantageous. But we would be the first to acknowledge that this belief is surely debatable, and a panoply of questions must be considered.
...
In the database system we envision, the information that the government is allowed to have is very different from the types that have sparked debates over medical privacy. The preponderance of the human genome consists of sequences that have no medical importance or social significance. Much of the genome is “noncoding” — these sequences are not translated into the proteins that are the machinery of cells — and most of them are not genetically “linked” to any coding sequences. Even in the coding regions, many DNA sequences merely code for traits such as gross features of fingerprints or the pattern of hair follicles in the skin that have no stigmatizing potential. Consistent with current practice, we would limit the database loci to such regions. Consequently, the genetic information included in the database would be no more invasive of privacy than an image of the ridges and whorls in a fingerprint or of the blood vessels in the retina of the eye.
...
[T]he system we envision keeps almost all samples out of the hands of law enforcement officials. Recall that the initial typing would be done by health workers, not police, as part of neonatal screening. No samples would be sent to law enforcement agencies — they would receive only the biometric genotypes that have no use except for identification. To the extent that additional sampling, say, of immigrants or citizens born abroad, would be necessary to cover as much of the population as possible, the sample could be destroyed as soon as the typing is complete. In fact, an instrument could be built that would extract an identifying profile and destroy the sample at the same time. Proper procedures for sampling the DNA, extracting the identifying profile, and immediately destroying the sample would protect everyone’s genetic privacy — to the extent we have any when private hospitals and HMOs keep samples of our blood and other tissue together with information far more sensitive than the random bits of DNA that identify us. The government officials maintaining the database could neither invade privacy nor enable insurers or employers to do so.

Looking back at these words 12 years later, I would change some of them as well. That the identification loci are not protein-coding is not sufficient to prove that they have no clinical predictive or diagnostic value. Moreover, the loci certainly are more informative than fingerprints or retinal patterns with respect to ascertaining parentage or siblingship. A population-wide database of profiles with the current CODIS loci would make it possible for the government to do "legitimacy testing" -- that is, to check families for children born out of wedlock. Other privacy questions would need to be addressed as well. As we wrote in 2001, "Our vision is futuristic ... incomplete and tentative. Many details remain to be worked out."

Saturday, July 27, 2013

DNA Diagnostics, Inc., is “a laboratory that provides multi-species testing including human as well as animal DNA testing for individuals, law enforcement, breed associations, and state regulatory agencies.”The lab

“participates in both human and animal proficiency testing”

has staff who are “eminently qualified to provide superior DNA testing services” and of “unquestionable quality,” and

performs “testing ... of the highest quality” (including “high volume genetic testing”) with “state of the art instrumentation and modern facilities .. on the cutting edge of technology in DNA testing.

Thus, “[s]taff members ... have been accepted in court as experts in human and animal forensic DNA testing ... for the prosecution and the defense and in [state and federal] criminal and civil cases.”

These attributes are what one would want in a forensic laboratory, and the work of this laboratory is nothing short of amazing. Last November, it issued a press release that “calls on public officials and law enforcement to immediately recognize the Sasquatch as an indigenous people.”

The Sasquatch? As in Bigfoot?

Absolutely. A “team of experts in genetics, forensics, imaging and pathology, led by Dr. Melba S. Ketchum ... sequenced 3 complete Sasquatch nuclear genomes and determined the species is a human hybrid” living in North America. The team discovered that “the legendary Sasquatch is a human relative that arose approximately 15,000 years ago as a hybrid cross of modern Homo sapiens with an unknown primate species.” Mitochondrial and “next generation sequencing [of] 3 whole nuclear genomes ... indicate that the North American Sasquatch is a hybrid species, the result of males of an unknown hominin species crossing with female Homo sapiens.”

This might seem amusing, but the study director’s responses to other scientists who interpret the results, not as proof of a hybrid species, but as an indication of contaminated samples, sound eerily like what one hears in court. John Timmer, a science writer and molecular biologist, describes what he found when he examined the “genomes” and conferred with her:

In cases where the hair comes attached to its follicle, it's possible to extract DNA from its cells. And that is exactly what the bigfoot team did, using a standard forensic procedure that was meant to remove any other DNA that the hair had picked up in the interim. If everything worked as expected, the only DNA present should be from whatever organism the fur originated from.

And, in Ketchum's view, that's exactly what happened. They worked according to procedure, isolating DNA from the hair follicles and taking precautions to rule out contamination by DNA from anyone that was involved in the work. Because of this, Ketchum is confident that any DNA that came from the samples once belonged to whatever creature deposited the fur in the woods—no matter how confusing the results it produced were. "The mito [mitochondrial DNA results] should have done it," she argued. "It's non-human hair—it's clearly non-human hair—it was washed and prepared forensically, and it gave a human mitochondrial DNA result. That just doesn't happen."

Ketchum was completely adamant that contamination wasn't a possibility. "We had two different forensics labs extract these samples, and they all turned out non-contaminated, because forensics scientists are experts in contamination. We see it regularly, we know how to deal with mixtures, whether it's a mixture or a contaminated sample, and we certainly know how to find it. And these samples were clean."

Timmer’s article on how science went wrong is well worth reading — and chilling if you think about how DNA Diagnostics’ director -- an eminently qualified expert witness -- might testify about contamination in a more mundane case.

Friday, July 26, 2013

In a New York Times op-ed article, High-Tech, High-Risk Forensics, Hastings Law School Professor Osagie K. Obasogie mentions a false arrest in the investigation of the murder near San Jose of millionaire investor Raveesh Kumra. A database trawl seemed to implicate Lukis Anderson, a homeless man who then “spent more than five months in jail with a possible death sentence hanging over his head” before prosecutors received records showing that Mr. Anderson was in a hospital for alcohol intoxication on the night of the murder. Prosecutors have suggested that paramedics who treated Anderson for intoxication at a liquor store in San Jose a few hours before the murder inadvertently transferred his DNA to Mr. Kumra’s fingernails.

This is by no means the first instance of secondary transfer of DNA to a crime scene (if that is the correct explanation), and forensic scientists have been conducting studies to see how often such transfer occurs. The case shows that police and prosecutors, as well as defense counsel and jurors, should not be overawed by matches from DNA database trawls. This is the good point that Professor Obasogie makes.

The rest of the op-ed article perpetuates mathematical fallacies about DNA databases. First, Professor Obosagie questions “the frequent claim that it is highly unlikely, if not impossible, for two DNA profiles to match by coincidence.” Nothing is impossible, but not many people share the same DNA identification profiles. The op-ed tries to deny this with the observation that “[a] 2005 audit of Arizona’s DNA database showed that, out of some 65,000 profiles, nearly 150 pairs matched at a level typically considered high enough to identify and prosecute suspects. Yet these profiles were clearly from different people.”

The 150 or so matches were, in fact, mismatches. That is, they were partial matches that actually excluded every “matching” pair. Only if an analyst improperly ignored the nonmatching parts of the profiles or if these did not appear in a crime-scene sample could they be reported to match.

Moreover, even we treat all 150 partial matches as tantamount to false full matches in casework, a proper analysis must account for artificially pairing every profile with every other profile and for the many ways to find some kind of partial match. The scientific and legal literature clearly shows that many partial matches are to be expected under these conditions. The 65,000-some samples then in the database gave rise to over a trillion possible partial matches. (The same combinatorial explosion explains the well-known “Birthday paradox” in probability theory.) A mere 150 partial matches out of a trillion opportunities to make such matches represents a quasi-false match rate on the order of about 100 per trillion (0.0000000001). This number is not quite zero, but neither is it “high risk.”

Second, Professor Obosagie notes that “There are also problems with the way DNA evidence is interpreted and presented to juries.” True enough. A common problem is the confusion of a random match probability with a source probability, and the op-ed makes this very mistake when it claims that jurors in the San Francisco prosecution of John Puckett five years ago were “told that there was only a one-in-1.1 million chance that this DNA match was pure coincidence.”

According to Mr. Puckett’s brief on appeal, the DNA analyst testified not to this source probability, but only that “the profile would occur at random among unrelated individuals in about 1 in 1.1 million U.S. Caucasians ... .” (The op-ed also mistakenly asserts that the defendant, who died before his appeal was heard, “is now serving a life sentence.”)

How prosecutors should present statistics in the cases in which the match came about from a database trawl is an important question, but it would have been misleading to tell jurors that the “chance that this DNA match [to John Puckett] was pure coincidence” was “one in three,” as Puckett wanted to do. Putting the possibility of laboratory error to the side (as the op-ed does), the probability of a database trawl suggesting that John Puckett was the killer of 22-year-old Diana Sylvester is 1 if Puckett was in fact the killer. It is about 1 in 1.1 million if he was not.

A figure like 1 in 3 therefore is not suitable for presenting to a jury as a measure of how revealing a database match is, but perhaps it is useful for another purpose. Puckett produced the probability by multiplying the tiny random-match probability of 1 in 1.1 million by the size of the database. This multiplication yields an estimate of how often trawling a database populated entirely by people innocent of every crime for which the database is used would produce matches to anyone. The larger the number, the greater the risk that “innocent databases”—those that fail to contain profiles of the individuals leaving their DNA at crime-scenes—will lead to false accusations.

Of course, we know that this is not a meaningful estimate of the false positive rate of the real databases, for most matches are corroborated with other evidence. If all databases were innocent, and the 1-in-3 number applied, we would be seeing lots of matches to people too young or too old to have committed the crime being investigated, in prison at the time, or having other solid alibis like Mr. Anderson’s.

Thus, it is improbable that strictly coincidental database matches are common—particularly in the run-of-the-mill cases in which the crime-scene DNA is not a mixture or too small or too degraded to be fully typed. Nevertheless, no one can say exactly how often DNA database searches turn up plausible suspects who are, in fact, innocent. This takes me back to Professor Obasogie’s one good point—let’s not get carried away with DNA database matches. There can be innocent explanations for reported matches. But let’s not become overly skeptical of the value of DNA databases to generate investigative leads—and let’s not use bad math to prop up our conjectures.

Thursday, July 25, 2013

In United States v. Kriesel, No. 11–30197, 2013 WL 3242293 (9th Cir. June 28, 2013), Judge Stephen Reinhardt characterized the court’s rejection of a convicted felon’s motion for the return of a DNA sample as the greatest judicially condoned infringement “on the privacy rights of so many Americans” in the history of this country. I suggested that to the extent that the opinion identified legitimate privacy interests, it overstated the actual infringement. As I explained, the abuses that worried Judge Reinhardt are either remote or prohibited by statute.

The last point makes the Kriesel dissent all but impossible to square with the reasoning of the Supreme Court in Maryland v. King. The King majority relied on statutory prohibitions on the kinds of abuses enumerated by Judge Reinhardt in maintaining that the individual privacy interests in preventing the state from acquiring DNA samples were too weak to justify invalidating the state’s pretrial DNA-sampling law.

Judge Reinhardt’s response seems to be that even if actual, widespread abuse is unlikely, “[i]t is the government's possession and control of Kriesel's most intimate genetic information that invades his right to privacy. Thus, Kriesel's concerns are real and legitimate, not speculation or mere conjecture.” But granting that some information on individual genomes is private, how can the interest in this privacy be “real and legitimate” if the prospect that the government will access and misuse the intimate information is (according to the King Court) unreal and illegitimate?

Before turning to the topic of the government’s reasons for wanting to retain samples indefinitely, a few other misleading parts of the dissenting opinion should be corrected. A trivial observation is that the opinion tries to wrap itself in apparently neutral or deep scholarship when it relies on views in the book Genetic Justice: DNA Data Bases, Criminal Investigations, and Civil Liberties. To create this impression about this book (which I have discussed here and here), the opinion elevates the authors—a professor of urban and environmental planning and policy, and an FDA employee formerly with the ACLU—to the ranks of “prominent bioethicists.”

More significantly, the opinion seems to suggest that the FBI permanently houses DNA samples from “persons arrested or detained ... for the most minor of infractions committed on federal land, such as: cleaning or washing any personal property, fish, animal, or bathing at a faucet not provided for that purpose; water skiing in an area where prohibited by order; allowing a pet dog off its leash; distributing handbills without permission; and parking illegally.” According to Judge Reinhardt, “none of these people may seek the return of their DNA sample.”

But the government does not have “indefinite access to stored blood samples” (or buccal samples) if there is no conviction. In that event, the statute requires expungement of “the DNA analysis” from the “index” (if the Attorney General receives notice from the courts of this outcome). I assume that the actual samples are outside this provision, but (1) my understanding might be amiss, since one part of the statute (§ 14132(a)(1)(C)) speaks of “samples ... in the National DNA Index System” and the statute’s definition of “DNA analysis” is opaque, and (2) I understand that FBI policy is to destroy samples when expunging records. In any event, my reading of the majority opinion reveals little to suggest that the Kreisel majority countenances indefinite retention in this situation.

Finally, the dissent complains that “perhaps worse, the government retains blood samples given voluntarily to help solve crimes ... .” In Judge Reinhardt’s opinion, an individual who voluntarily submits DNA to police “surrenders his most fundamental privacy interest in not having his basic genetic information fall permanently into the hands of a government that is not always sensitive to the importance of the constitutional right to privacy.”

I am not going to pretend that the U.S. government is always sensitive about privacy (or anything else), but there are two glaring defects in this complaint. First, if the Fourth Amendment justification for permanent retention is consent, then the individual must consent to permanent retention. Just saying, "yes, you may use my sample" in connection with a particular investigation (such as the mass screening in Truro, Massachusetts, cited in the dissent) should not establish such consent.

Second, even if an individual wanted to surrender his constitutional rights, the government could not store the sample. The statute provides “that DNA samples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System.” 42 U.S.C. § 14132(a)(1)(C) (emphasis added). Omitting this express limitation is especially puzzling given that the opinion cites § 14132(a) as the authority for its claim that the opposite is true.

Having lingered over the blemishes and flaws in the dissent, I need to turn to the more penetrating facets of the opinion. Stay tuned.

Thursday, July 18, 2013

Reading the dissent in the latest round of United States v. Kriesel, one would think that the Fourth Amendment is no more. “No other case,” writes Judge Stephen Reinhardt, “reflects a greater surrender on the part of the courts of the citizens' right of privacy simply because it is told ‘Trust Your Government.’” “Never before have we condoned so great an infringement on the privacy rights of so many Americans.”

This misconceives both the government’s arguments and the impact of sample retention. Certainly, the government asserts that it can be trusted to abide by statutory limitations, but courts routinely indulge the presumption that the government will abide by the law—and they maintain that they can provide remedies when the government breaks the law. All that the majority opinion condones is the retention of cells for the sole purpose of using them to correct errors in DNA database records and to monitor the accuracy of the process of DNA profiling. These interests may be relatively unimportant, or they may be attainable in other ways—as the dissent also argues—but that does not increase the level of any actual damage to privacy.

So what makes Kreisel III the Dred Scott of privacy law? (Maybe Buck v. Bell would be the better metaphor, since the dissent quotes Justice Holmes’ infamous defense of a compulsory sterilization law, that “[t]hree generations of idiots is enough.”) Over and over, the dissenting opinion in Kriesel complains of “immense damage” and “devastating implications” of sample retention on “privacy interests [that] are nothing short of overwhelming,” but precisely what evil is the government going to brew with the biological material in the “government-controlled refrigerators”?

The opinion refers to “millions of individuals' blood samples that contain highly private genetic information that could be made public as a result of a governmental failure to maintain proper security.” Does this mean that the FBI will ship the refrigerators to WikiLeaks? That it will leak millions of samples with names on them to greedy insurance companies who want to use them (in violation of federal and, often, state law) to deny coverage to bad risks or to adjust their premiums?

The opinion suggests that in addition to facing the prospect of having millions of samples disclosed to third parties, the individuals with samples in storage run a real risk of having the government inspect the samples for a “crime gene” to use for “preventive detention” or “social control.” It cites a report in the New Scientist about a “Gangsta gene” -- so called because a 2009 study in Comprehensive Psychiatry stated that one form of the gene increased the risk of teenage gang membership by a factor of two. This “warrior gene,” as it also has been dubbed, has been linked with increased risks of violent and aggressive behavior. It encodes monoamine oxidase A, an enzyme that degrades amine neurotransmitters, such as dopamine, noradrenalin and serotonin. More precisely, an allele of the MAOA gene, known as MAOA-L, is associated with a low level of expression of the enzyme (when certain environmental conditions, such as child sexual or physical abuse have been present).

But MAOA-L is a common variant of the gene, making it all but useless as a predictor of gang membership or violence. The Kriesel dissent simply ignores the section of the New Scientist story prominently entitled “caution needed.” Likewise, the opinion gives credence to claims that a gene found in men heightens “the potential for cheating, marital discord, and divorce.”

Although using these genes for “social control” in the near future seems most unlikely, the dissent tries to conveys the impression that it is not far-fetched to imagine that the government will use MAOA-L as a violence test. Judge Reinhardt cites Buck v. Bell and “the eugenics and criminal anthropology movements” as “a not so distant memory,” and he points to the fact that “[t]he FBI ... has already announced its proposed expansion of the current CODIS system.”

But the expansion to additional STR loci will not permit the FBI to screen samples for men prone to gang membership or violence (let alone marital discord). The additional loci will produce a more individualizing profile that will have more power for matches involving degraded and mixed crime-scene samples and for outer-directed database trawls for first-degree relatives (usually called “familial searching”). Turning the samples over to what the opinion calls “behavior geneticists” for identifying future crimes or criminals—even if this trick were to become possible—is not the kind of “identification” that federal law allows. (See David H. Kaye, Behavioral Genetics Research and Criminal DNA Databanks, 69 Law & Contemp. Probs. 259 (2006), reprinted in part in as Behavioral Genetics Research and Criminal DNA Databases: Laws and Policies, in The Impact of Behavioral Science in Criminal Law 355 (Nita Faranhy ed. 2009).)

To be sure, the dissent has a point when it observes that many people fear that the government will abuse the information that lies coiled and unseen in the blood samples. Many members of the military, for example, are uncomfortable with the government’s holding their (unanalyzed) DNA in storage just in case it might be needed to identify their remains. To the extent that these fears are unfounded, however, it is hard to maintain that Kriesel III is a reincarnation of Buck v. Bell and the end of genetic privacy as we know it.

At the same time, this cautionary note does not mean that indefinite sample retention is constitutional or equitable. Judge Reinhardt is more convincing when he maintains that the majority’s rationales are “flimsy” than when he bemoans the “immense damage to the privacy interests in genetic data.” I shall turn to that side of the ledger later.

Wednesday, July 17, 2013

Thomas Kriesel wants his blood back. The federal government forced him to give a sample for the FBI’s national DNA databank while he was on probation following his imprisonment for conspiring to possess methamphetamine with the intent to distribute it.

At first, he challenged the federal law requiring DNA sampling as a condition of supervised release, but a panel the Court of Appeals for the Ninth Circuit rejected that challenge in a split opinion in 2007. United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007).

After completing his sentence, Kriesel sued the government. He demanded that it remove his identifying profile from the federal database and return his blood sample. The district court held that he was not entitled to expungement of the profile. On appeal, he dropped that part of his claim, but continued to argue for the return of the blood sample. The Ninth Circuit sent the case back to the district court for a more complete record and ruling on the retention of the sample. United States v. Kriesel, 604 F.3d 1124 (9th Cir. 2010).

On remand, the district court again ruled against Kriesel. The case moved to the court of appeals for the third time, and last month, Kriesel suffered another defeat. In United States v. Kriesel, No. 11–30197, 2013 WL 3242293 (9th Cir. June 28, 2013), the Ninth Circuit become the first U.S. Court of Appeals specifically to uphold indefinite sample retention. Judge Mary Schroeder wrote the majority opinion for herself and Judge Milan Smith. Judge Stephen Reinhardt wrote a lengthy dissent.

All the judges, from the district court on up, agreed that if the post-sentence retention of the sample offended the Fourth Amendment or if the government had no need to hold on to the sample, Kriesel would be entitled to its return under Federal Rule of Criminal Procedure 41(g). Proceeding under this rule is similar to bringing an equitable action for the return of property that the government has acquired improperly or no longer needs. The majority observed that the rule's definition of property includes “documents, books, papers, any other tangible objects, and information.” Fed. R. Crim. P. 41(a)(2)(A). It then noted that “the blood sample itself is a tangible object, and the genetic code contained within the blood sample is information.” Finally, it pointed out that “[t]he applicability of Rule 41 to bodily fluids is supported by our circuit law. We have previously held that professional baseball players' urine samples, that the government seized from a laboratory, were ‘property’ within the meaning of Rule 41(g). United States v. Comprehensive Drug Testing, 621 F.3d 1162, 1173 (9th Cir. 2010).”

It is, however, far from clear that anyone has ordinary property rights in their cells, fluids, and biological “information.” Just ask the family of Henrietta Lacks. Suppose that someone dropped a diamond ring on the sidewalk and was looking for it when a passerby joined in the search, found it, and took it. The owner would be entitled to its return. Now suppose the owner lost a drop of blood when he cut his finger on a glass fragment lying on the ground looking for the ring and a passerby placed the bloody fragment in a cup. Would the owner be entitled to the return of this bodily fluid? Of “the genetic code contained within the blood sample”? Not all that is private or personal is property, and Rule 41(g) applies only to "property." It reads:

(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

Commentary to the 1989 amendment of the rule likewise refers to the "right of a property owner." But let's assume that even if Kriesel lacks the full bundle of rights associated with property under the common law, he is a "property owner" for the purpose of Rule 41. There still is a problem with applying Rule 41 to compel the return of the blood. Kriesel I established that Kriesel was not "aggrieved by an unlawful search or seizure." Even if the blood sample can be considered his property, is he "aggrieved ... by the deprivation of property"? It is not as if he needs the drops of blood for his personal use. Their destruction would fulfill all the privacy interests he can claim.

Thus, the Ninth Circuit's extension of Rule 41 to bodily fluids like blood and urine is not as straightforward as it might seem. In addition to the property issue, under the Fourth Amendment, the compelled acquisition of these items is a search, not a seizure (see David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013)). Rule 41 is tied to the Fourth Amendment in many ways, and it applies only when "property was seized."

Of course, there is an answer to these technical arguments. In the end, the Ninth Circuit's reading of Rule 41 rests on a broad conception of the rule's purpose as affording the government access to all the constitutionally obtained evidence it needs for law enforcement purposes while accommodating the interests of property owners. Because a property owner is entitled to shield his property from view, it is arguable that even though continuing to hold on to material is neither a search nor a seizure under the Fourth Amendment, it might be unreasonable under Rule 41(g). (For the view that retention alone is not a search, see Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010).)

Granting that the Ninth Circuit’s reading of Rule 41(g) to encompass bodily fluids as "property" is correct, the question becomes whether the continued retention of the sample is unreasonable. The majority frames the issue as whether “the government has shown a legitimate reason for retaining the property.” This standard, although tilted against property owners, is consistent with the following commentary to the 1989 amendments:

No standard is set forth in the rule to govern the determination of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property. The fourth amendment protects people from unreasonable seizures as well as unreasonable searches, United States v. Place, 462 U.S. 696, 701 (1983), and reasonableness under all of the circumstances must be the test when a person seeks to obtain the return of property. If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable. But, if the United States' legitimate interests can be satisfied even if the property is
returned, continued retention of the property would become unreasonable.

The majority discerned two such legitimate reasons for sample retention. First, when there is a cold hit in the database to a crime-scene sample, before making an arrest, the government “compares the database profile against a new profile generated from the offender's retained blood sample.” This protects a suspect whose profile was incorrectly ascertained or recorded from being “hauled into custody.” Second, the government randomly samples 1% of the offender samples processed in the preceding six months for re-profiling. If an inconsistency appears, the laboratory can “review how the process might have malfunctioned” and retest other samples that might have been misanalyzed.

In a hyperbolic dissent, Judge Reinhardt found these justifications “entirely without merit.” In his eyes, the majority's opinion is “wholly unsatisfactory”—a “failure” stemming from “unwillingness to protect the fundamental right to privacy of all Americans.” Indeed, “[n]o other case ... reflects a greater surrender on the part of the courts of the citizens' right of privacy ... .” It is bad enough that “the government ... will [keep Kreisel’s blood] indefinitely in a government-controlled refrigerator in a warehouse in Northern Virginia,” but the decision “affects over ten million individuals who currently have blood samples on file with the federal government and the many tens of millions more average Americans who, as the seizure of DNA samples expands almost beyond limits, will have their entire genetic code maintained permanently in other government refrigerators.” “Never before have we condoned so great an infringement on the privacy rights of so many Americans.”

The dissent, I fear, overstates the harms to the individuals whose DNA resides in the sample repositories. Nonetheless, Judge Reinhardt come closer to the mark in maintaining that the two rationales for wholesale and indefinite retention are rather weak. Stay tuned for elaboration on these conclusions.

Wednesday, July 3, 2013

Was Italian Judge Claudio Pratillo Hellman's refusal to order more DNA testing of a knife in the Knox-Sollecito case "bad judicial math"or a considered judgment that little would be gained by waiting for more tests of low template DNA (as the court-appointed experts advised him)? That was the question addressed in discussions here back in March and May.

Now, an article in the Proceedings of the National Academy of Sciences of the USA reports that a different mixed profile does not seem to reflect Amanda Knox's DNA. Seeking to clarify a New Scientistnews report entitled "Software says Amanda Knox's DNA Wasn't at Crime Scene," Professor David Balding, a statistical geneticist at University College London who has made important contributions to the statistical evaluation of forensic DNA profiles, describes this finding on his website as follows:

I do reanalyse a crime scene profile from the murder of Meredith Kercher in Perugia, Italy, in 2009 and find no support for the presence of DNA from Amanda Knox as they say, but the main question for that item was whether there is DNA from Raffaele Sollecito, and my analysis finds strong support for this even allowing for many of the problems with the DNA evidence highlighted at the appeal in 2011.

As the PNAS article makes clear, Dr. Balding used software that he is developing for LT-DNA profiles to evaluate the "five loci from exhibit 165B of the trial in Perugia, Italy, in 2009. The exhibit includes the clasp of a bra, attached to some apparently blood-stained fabric, that was found near the murdered woman, Meredith Kercher."

The prosecution's expert testified at the trial that the profile of the clasp DNA matched all the alleles of the victim and one of Sollecito's. The court's experts (Vecchiotti and Conti) agreed "but also reported many additional epg [electropherogram] peaks. ... Of the 24 additional peaks ... , of which 6 had heights below the threshold of 50 relative fluorescence units, 9 are included in [Knox's] profile ... providing apparent support for the presence of DNA from her. However, four of her alleles were not observed, including two homozygotes, which are less prone to dropout [in such small samples]." In other words, it is hard to know what to make of the data by eyeballing it.

The statistical software (to the extent I understand it) models allelic "drop in" and "drop out" and uses allele frequencies in the population to generate likelihood ratios for the peaks that the analyst regards as the result of true alleles as well as those designated as "uncertain" alleles. In this case, the well established alleles indicated a mixture of DNA from three or more people, and Balding considered two competing hypotheses: (1) the DNA is a mixture from Kercher, Sollecito, and one unknown individual vs. (2) the DNA is from Kercher and two unknown individuals.

He found that the perceived pattern of alleles was 42 million times more probable if Sollecito's DNA was there. As for Knox, however, "separate analysis with her as the queried contributor returned an LR < 1." That is, the designated pattern would arise more often if Knox's DNA were in the mixture than if it were not -- a finding "favoring a conclusion of no DNA from her."

What this means for the case depends on what some forensic scientists call "activity level" hypotheses and what lawyers call "relevance." What activity would cause Sollecito's (but not Knox's) DNA to be detected on the bra clasp (but not on the fabric)? The defense theory, of course, is that neither of them touched the bra, but Sollecito's DNA molecules were transferred there at a later time. The prosecution theory could be that Sollecito (but not Knox) touched the bra during the murder.